Federalism is surrounded by controversy.

Federalism means allowing states to block actions, prevent progress, upset national plans, protect powerful local interest, and cater to the self-interest of politicians.

William Riker American political scientist◦ The main effect of federalism since the civil war

was to perpetuate racism

Virtue of the federal system lies in its ability to develop and maintain mechanisms vital to the perpetuation of the unique combination of government strength, political flexibility, and individual liberty.

Whenever the opportunity to exercise political power is widely available it is obvious that in different places different people will use power for different purposes.

A. Allow states to make decisions that maintain racial segregation,

facilitate corruption, protect interests

B. Allows states to pass laws that end segregation, or regulate harmful economic practices before these

idea gain national policy.

The existence of independent state and local governments means that different political groups pursuing different political purposes will come to power in different places. The smaller the political unit the more likely it is to be dominated by a single political faction.

(James Madison Federalist 10)

◦ When Riker condemns federalism he is thinking that some ruling factions have opposed groups

When Elazar praises federalism he is saying that some ruling factions have taken the lead (advance of national government) in developing measures to protect citizens and improve social conditions.

INCREASED POLITICAL ACTIVITY

One effect of federalism is an increase in political activity.◦ A. people are more likely to get involved in

government if they feel like they have a chance to make an difference.

B. This is only true in a place where there are many elected officials and independent bodies, each with a relatively small constituency.

C. Federal system, by virtue of the decentralization of authority, lowers the cost of organized political activity.

THE FOUNDING OF FEDERALISM◦ It was a way to protect personal liberty

Fear that placing final political authority in any one set of hands (elected) risk tyranny.

NEW PLAN◦ This federal republic would derive its power directly

from the people, both levels of government would have certain powers, but neither would have supreme authority over the other. Madison (federalist 46) both state and federal gov. are in

fact the same agents and trustees of the people but with different powers

Hamilton (federalist 28) people would shift their support from one government to the other to keep the two in balance.

◦ The Constitution does not spell out the powers of the states (not until the 10th Amendment) Why?

◦ The framers believed the federal government would only have the powers given it by the Constitution.

ELASTIC LANGUAGE◦ The need to reconcile the competing interests of both the

small, large and Northern, southern states was real difficult without trying to spell out exactly what relationship should exist between the national and state governments. (example regulate commerce) Some clauses on federal/state relations were clear others

were quite vague. Why?◦ Article I sec 8 clause 18◦ 2 views of what federalism meant

Hamilton believed that the national was the superior and leading force in political affairs, and that its powers ought to be broadly defined and liberally construed.

Jefferson the federal government was the product of an agreement among the states, and though the people were the ultimate sovereigns, the biggest threat to their liberties was to come from the national government. Madison Federalist 45 powers of the national government should

be narrowly construed and strictly limited The powers delegated by the Constitution to the federal

government are few and defined those given to the state governments are numerous and indefinite.

Meaning of Federalism◦ Civil War was fought over states rights VS national

supremacy. It only solved that the national government was supreme and the states could not secede. Other aspects of the national supremacy issue continued

Supreme Court◦ It was led by advocate of Hamilton’s position John

Marshall. In a series of decisions he and the court defended the national supremacy view of the federal government. McCulloch V. Maryland (1819) answered 2 questions in

ways to expand the powers of congress and confirmed the supremacy of the federal government to use those powers 1 did Congress have the power to set up the bank such a

right is not explicitly in the Constitution court says yes necessary and proper.

2 could the federal bank be taxed by the states lawfully the court ruled no federal government is supreme

NULLIFICATION◦ When Congress passes a law to punish newspaper

editors who published stories critical of the federal government (1798 Virginia and Kentucky Resolutions Madison and Jefferson) never went to court

◦ That states had the right to nullify a federal law that in the states opinion violated the Constitution

◦ John C Calhoun of South Carolina in opposition to a tariff enacted by the federal government, and later in opposition to federal efforts to restrict slavery he said the states could nullify this law because it violated the Constitution. Civil war solved this issue states could not declare

acts of Congress unconstitutional and the supreme court later confirmed.

DUAL FEDERALISM◦ The national government was supreme in its

sphere, the states were equally supreme it theirs, and these two spheres should be kept separate.

◦ (These came after the Civil War debate on the interpretation of the commerce clause)

◦ Interstate commerce Congress could regulate◦ Intrastate commerce Only the states could

regulate The Courts could tell which was which

That was a real problem why? How was it solved? Congress, provided that it had a good reason, could

pass a law regulating almost any kind of economic activity anywhere in the country and the Supreme Court would allow it “Constitutional.”

The Supreme Court has recently ruled that Congress has exceeded its commerce power.◦ 1995 United States vs Lopez◦ 2000 overturned the Violence Against Women Act

of 1994 The Court has strengthen states’ rights

◦ Printz vs United States 1997 Court has given new life to the 11th

amendment which protects states from lawsuits by citizens of another state or foreign nations.◦ Alden vs Maine

This calls forth old truths about the constitutional basis of state and local government.◦ States can do an thing that is not prohibited by

the constitution or preempted by federal policy and that is consistent with its own constitution. Police power laws and regulations that promote

health safety and morals Many states give their citizens direct democracy

Initiative Referendum recall